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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsKagan Throws Scalia's Own Religious Liberty Arguments Back In His Face - TPMDC
Kagan Throws Scalia's Own Religious Liberty Arguments Back In His FaceSahil Kapur TPMDC
March 25, 2014, 3:45 PM EDT
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During oral arguments Tuesday about the validity of Obamacare's birth control mandate, Justice Elena Kagan cleverly invoked Justice Antonin Scalia's past warning that religious-based exceptions to neutral laws could lead to "anarchy."
"Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard," she told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. "So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."
Kagan's remarks might sound familiar to the legally-trained ear. In a 1990 majority opinion in Employment Division v. Smith, Scalia alluded to the same examples of what might happen if religious entities are permitted to claim exemptions from generally applicable laws. He warned that "[a]ny society adopting such a system would be courting anarchy."
"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," Scalia wrote in the 6-3 opinion, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."
Indeed, Clement picked up on the reference...
<snip>
More: http://talkingpointsmemo.com/dc/elena-kagan-antonin-scalia-birth-control-mandate
markpkessinger
(8,517 posts)Thank you, Justice Kagan, for so deftly showing Scalia to be anything but the principled jurist he purports to be!
calimary
(83,467 posts)She was the one who argued against it before the high court when she was solicitor general. So she's the one who lost the case for the rest of us. President Obama said at the time of her nomination he thought she was really swell as a "consensus builder." Well, she did a piss poor job on that trying to win the case against Citizens United, thankyouverymuch.
Not all that impressed with Associate Justice Elena.
PhilosopherKing
(353 posts)Those 5 justices had already decided the citizens united ruling long before arguments were made.
1StrongBlackMan
(31,849 posts)This isn't a Grisholm novel, where a brilliant argument wins the day ... most appellate decisions are made before the oral arguments are ever made ... it's all about the briefs; OAs are just to give the proceeding an air of transparency to the public.
New Orleans Strong
(212 posts)So rare to see. From an old stickler -
markpkessinger
(8,517 posts)New Orleans Strong
(212 posts)Glad to meet a fellow opera lover. My Mom got me hooked at a very young age, and at 54, it is one of the best gifts she ever gave me.
pangaia
(24,324 posts)It does not get any better than that!
OMG I can't stand it............
catrose
(5,203 posts)pangaia
(24,324 posts)Christa Ludwig,
Gwyneth Jones,
Lucia Popp,
Walter Berry,
Plácido Domingo
Bernstein - Vienna 1971.
Do you know that recording ??
The WHITE/SILVER COVER LP...... I'm looking at it right now...
EEEEEEEEEEEEEEEEIIIIIIIIIIIIII
ps (I was a timpanist/percussionist/and occasional conductor)
I've played it, but never conducted it.
Kurovski
(34,657 posts)I unnerstan a lotta big deal eye-talians dig them opera shows.
pangaia
(24,324 posts)Apparently he and Justice Bader-Ginsburg have that in common.
Kurovski
(34,657 posts)when Capone is weeping at a performance of Pagliacci while the scene is inter-cut with his gang murdering on his orders.
catrose
(5,203 posts)Renee Fleming
Susan Graham
Christine Schafer
Kristinn Sigmundsson
Edo de Waart, conductor
2010
has been my touchstone lately
As a cellist, I played it under Judith Somogi, a few years before she died, far too young.
pangaia
(24,324 posts)3catwoman3
(25,036 posts)...separation moment - my now 92 yr old mom was the school nurse at Renee Fleming's middle school in Gates-Chili NY.
pangaia
(24,324 posts)talking about 6 degrees etc.
defacto7
(13,485 posts)for years and have worked with her from the beginning of her career. I did a recording with Susan, and Edo is an old friend under who's baton I've sung many many times. I can say no more than that, but I wish I could speak openly. Sometimes I hate Internet limitations.
pangaia
(24,324 posts). My first wife was a singer and studied with her for a brief time.
What s special human being.
Fortinbras Armstrong
(4,473 posts)Last edited Fri Mar 28, 2014, 10:19 AM - Edit history (1)
And I don't mean operas which are badly performed, which is a different topic, but operas which are bad in themselves. My introduction to the works of Alban Berg consisted of my being taken to a performance of Wozzeck. I walked out in the intermission; I had to make my own way home, but I considered it a small price to pay to be delivered from the ghastliness being perpetrated in the opera house.
I tried listening to a recording of Arnold Schoenberg's Moses und Aron. I already had a bad opinion of Schoenberg -- my reaction to his Pierrot Lunaire was "If he is trying to develop feelings of mild nausea in the listener, he is succeeding brilliantly" -- and this opera did nothing to change my opinion. I turned it off after about ten minutes.
There aren't enough "o"s in boooooooooooooooring to properly describe Phillip Glass's Akhenaten. Peter Schickele, DBA PDQ Bach, once tried to parody Glass. He demonstrated that Glass cannot be parodied.
I listen to opera to be entertained. Give me a good Carmen, and I am delighted. I agree with Soren Kierkegaard that Don Giovanni is "a work without blemish, of uninterrupted perfection". I like most of Verdi, but believe with Rossini that "Wagner has good moments, but awful quarters of an hour". (In Götterdämmerung, notice that when Alberich and Hagen have their conversation, they actually have exactly the same conversation three times.) Speaking of Rossini, The Barber of Seville is my favorite comic opera, and his other stuff is also very good.
catrose
(5,203 posts)I turned off Wozzeck last weekend when the Met had it on the radio. You've named a bunch I wouldn't listen to--but I still do giggle at Einstein on the Fritz. Carmen I've played and seen too often, but Verdi, Mozart, Rossini, and Puccini still thrill me. And the jewel is Strauss' Rosenkavalier, though I won't claim equal status for the rest of his operas.
And if you pared down the good moments in Wagner, you'd have a couple of hit songs for the radio. Sorry, Wagnerites--it's painful to play and hear. Even the repetitious Baroque operas are better.
LondonReign2
(5,213 posts)And of course Fat Tony will rule quite the opposite of of what he proclaimed in the previous case. He long agao gave up the pretense of being an impartial judge, and he knows there is nothing anyone can do about it.
longship
(40,416 posts)And I have no doubt of how Scalia will opine on this. I only hope that there are enough with sense on the court to make this a definitive defeat for Hobby Lobby, et al.
R&
pnwmom
(109,388 posts)from people in the 36 states who use the Federal exchange.
Boomerproud
(8,258 posts)that up would kill me financially. I might as well never see a doctor again because I'd have no insurance. I didn't know about that case-you have me worried now.
pnwmom
(109,388 posts)I think it would doom ACA for the whole country, not just the 36 states.
Rstrstx
(1,511 posts)It's just now being heard by the DC court of appeals after being upheld by a lower court.
Yes you're right that it would be a disaster, but I'd put the odds of this getting upheld by the SCOTUS as slim. The lower judge in his ruling stated that "the Court finds that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges".
A few other similar cases are making the rounds through the lower levels but I don't see this gaining much traction.
One thing I'm confused about is how the case made it before a judge in the first place; I thought for someone to bring a case before the court they would have to be adversely affected in some way. I don't see how someone challenging the subsidy would have any standing, how could they be harmed, suffer damages or otherwise be adversely affected? Even proponents of these challenges admit it's a long shot.
pnwmom
(109,388 posts)freshwest
(53,661 posts)Volaris
(10,468 posts)My take on this was 6-3 against hobby lobby, with Roberts in the majority. I dont think hes dumb enough to carve out a religious exemption for anything thats not ACTUALLY a religion, is why...
happyslug
(14,779 posts)The problem is one that Employment Division vs Smith involved the use of an ILLEGAL SUBSTANCE under both Federal and State law.''
Please note Scalia in his opinion cites Hobbie v. Unemployment Appeals Comm'n of Florida, an 1987 case written by Brennan, but agreed to be Scalia:
http://www.law.cornell.edu/supremecourt/text/480/136
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=707
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 is the 1981 case cited in the above cases:
The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members [450 U.S. 707, 716] of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation....
The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that "[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, at 215.
The purposes urged to sustain the disqualifying provision of the Indiana unemployment compensation scheme are two-fold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons; 12 and (2) to [450 U.S. 707, 719] avoid a detailed probing by employers into job applicants' religious beliefs. These are by no means unimportant considerations. When the focus of the inquiry is properly narrowed, however, we must conclude that the interests advanced by the State do not justify the burden placed on free exercise of religion.
There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create "widespread unemployment," or even to seriously affect unemployment - and no such claim was advanced by the Review Board. Similarly, although detailed inquiry by employers into applicants' religious beliefs is undesirable, there is no evidence in the record to indicate that such inquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits to people in the petitioner's position. Nor is there any reason to believe that the number of people terminating employment for religious reasons will be so great as to motivate employers to make such inquiries.
Neither of the interests advanced is sufficiently compelling to justify the burden upon Thomas' religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment Clause.
The 1963 Case. SHERBERT v. VERNER, 374 U.S. 398 (1963)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=374&invol=398
In that case the Court ruled that while a State can declare one day a week a uniform day of rest (ban ALL work one day of a week, even if it is Sunday) but if the State then exempts from that day of rest people in a certain people in certain jobs EXCEPT if that day is their day of rest, that is a religious exemption that is only legal if extended to other people and their day of rest, i.e. Seventh Day evangelists and being off work Saturday, when everyone else can take Sunday off. Jews can take Saturday off, Muslim could take a Friday off (Through Muslim's holy day is NOT a day of rest as that term is used in Jewish and Christian Tradition). Thus a State can ban Sunday Employment except for certain jobs (Just exemptions have always occurred because emergency work has to be done on even days of rest), but if the state then makes a further exemption from the exemption, but this time based on religion, and makes no such exemption for people whose holy day is another day of the week, that is unconstitutional.
IV.
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 203. Nor does the recognition of the appellant's right to unemployment benefits under the state statute serve to abridge any other person's religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part [374 U.S. 398, 410] of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee's religious convictions serve to make him a nonproductive member of society. See note 2, supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16 .
Unemployment Compensations was a huge source of Separation of Church and State AND no infringement on religion. The above cases are the key cases in the Hobby Lobby case, and they do NOT make the Hobby Lobby case easy. The government is forbidden to infringe on religious freedom (the above unemployment Compensation cases), but is permitted to pass neutral laws that do infringe on freedom of religion (The Peyote case).
SunSeeker
(53,160 posts)ED v. Smith still ultimately came down to whether the peyote prohibition violated the First Amendment, much like Hobby Lobby comes down to whether the birth control mandate violates the First Amendment. But in Hobby Lobby, the interest of the plaintiff should be considered even more tenuous than in Smith, which involved an actual human being with a soul. Hobby Lobby involves a soulless corporation that cannot possibly fear burning in hell for covering contraceptives.
happyslug
(14,779 posts)Do we go with the Peyote Cases, or the unemployment Insurance cases? In the unemployment insurance cases, the court ruled that for a State to require a worker to stay in a job, that has changed so that it is now in opposition to his religion, can he quit and get unemployment compensation? The Court ruled that Unemployment Compensation is a GOVERNMENT BENEFIT and can can NOT be denied if the reason someone quit work is do to strongly held religious beliefs. i.e. he could not make tank turrets, when that was the only job left he could do OR she could NOT work on Saturdays do to her religion which forbid her from working on Saturdays.
Which is closer to having to pay for insurance that includes the right to pay for an abortion? The unemployment cases are involve government benefits (unemployment Compensation) something employers have paid for since the 1930s. Peyote is something the user paid for and his employer forbidden him from using, as did the state. The unemployment cases are closer to Hobby Lobby's position, but the other side would like to make that argument more like the Peyote case.
Lets see how the court rules.
SunSeeker
(53,160 posts)The pacifist would have to personally work on building bombs to keep his job, thus much more infringing on his religion. Hobby Lobby is not being asked to use birth control (it can't, it is not human!), just pay their workers and provide medical coverage that all employers provide. Even if they don't provide the medical coverage, they still would unquestionably have to pay their workers, and THAT money would go to birth control. As an employer, there is no way around the consequence that your money will be used by your employees to do things you don't believe in. What Hobby Lobby wants to do is burden THEIR EMPLOYEES' RELIGIOUS BELIEFS or lack thereof, by making it more expensive for them to buy birth control. The pacifist is not trying to make his employer stop making bombs or making it more expensive for them to do so. Hobby Lobby's argument is pure sophistry. Plus Hobby Lobby is a soulless corporation. The "burden" on them is negligible, if it exists at all.
happyslug
(14,779 posts)I avoided making a call on how the court will rule. Just pointing out how the court is looking at this issue.
SunSeeker
(53,160 posts)But being wrong has never stopped them before, sadly.
Steviehh
(115 posts)liberty, community at most times. I risked jail and was told it was 5 yrs. Then they drafted you as soon as you got out. BUT, I come from a long line of WAR draft resistors. Grandad was a draft resistor in WWI. He and a bunch of young guys were recreated, They burned down the tent containing records and went their separate ways. Uncle in WWII (Dad was on the Missouri, Mach. Mate). Uncle in Korea, went as concious objector. Distant cousin Navy Corpman, On ships off Guadacanal and Iwo Jima. Never ate meat again.
Me in Nam era. You know you lose everything, but gain your soul.
Not a great choice, but sometimes the only one.
SunSeeker
(53,160 posts)And there is nothing, NOTHING a corporation can do to gain a soul. They are not human. Corporations are a legal fiction that are supposed to only exist to serve the interests of people.
DebJ
(7,699 posts)AtheistCrusader
(33,982 posts)Nicely played.
DeSwiss
(27,137 posts)K&R
Fat Tony could care less about so-called precedents, including his own. He won't even feign embarrassment as he rules for Hobby Lobby
justiceischeap
(14,040 posts)if the USSC rules in favor of Hobby Lobby and Conestoga.
I'll shun my atheism if it gets me out of paying taxes... and debts... and student loans... and rent... and car payments... and for food. My "religion beliefs" maintain all these things should be free.
They don't seem to be seeing this is akin to the law in Arizona that got vetoed. They don't see how other religions can turn this around on Christians. Idiots.
Response to WillyT (Original post)
Post removed
Bucky
(55,334 posts)I futher boldly predict his explanation of his rank hypocrisy will be supported by a written decision riddled with utter bullshit.
You may quote me.
progressoid
(50,425 posts)Jerry442
(1,265 posts)Bucky
(55,334 posts)They are never appointed to the Scotus.
SunSeeker
(53,160 posts)There are so many legal theories and precedents to choose from, they hardly form a constraint. They are picked based on what works to justify the result the Justice wants to reach based on their political beliefs. The more skilled Justices make it look less obvious, but they all do it. Law is squishy and malleable by any skilled litigator or judge, especially with regard to the type of high level policy issues that reach SCOTUS. That is why it is so important to appoint justices who are progressive and want a result that is in the best interests of the people.
mdbl
(5,187 posts)To say the least. Uncle Clarence ranks right up there with them as we'll.
2banon
(7,321 posts)but I'm bit confused. I think I get why Kagan is arguing points Scalia made in a previous decision, but I also get the impression that she's bolstering Clements arguments, as Clement seemed to take the cue and pressed his argument further. Do I read this accurately?
I just don't get how I should interpret this bit.
raging moderate
(4,469 posts)Where do I sign up to be exempted from my share of subsidizing the use of that medication?
idendoit
(505 posts)...whether or not the plaintiffs qualify as persons under the 1993 law. If the court says they are, then wouldn't that open up companies not being able to shield themselves from personal lawsuits?
yellowcanine
(36,135 posts)Saying, "We did that in Bush v Gore, so we can do it again." And then he will proceed to argue for allowing the Hobby Lobby do object to anything they want in the ACA as long as they say it is a religious based objection.
afertal
(148 posts)I would love to here someone on the court address my right to freedom from the religious fantasies of my employer.
SunSeeker
(53,160 posts)The victim here is not Hobby Lobby. It is its employees.
The Magistrate
(96,043 posts)They do not have any right to do that: free exercise of religion by person A cannot require person B to behave only in ways person A believes his or her religion requires.
Welcome to the forum, by the way.
Trust Buster
(7,299 posts)If corporations are "people my friends", then am I allowed to deduct MY living expenses from my income taxes and protect MY personal assets from legal liability ? If not, "it's discrimination my friends".
JDPriestly
(57,936 posts)Rex
(65,616 posts)BAAHAHAHAHAHAHAHA!!!
truebluegreen
(9,033 posts)Rex
(65,616 posts)Though to me he just seems mad.
truebluegreen
(9,033 posts)and totally believes in "strict constructionism" except when it is inconvenient. Also totally believes in "judicial restraint" (deferring to the Legislative branch) except when he doesn't.
http://www.newscorpse.com/ncWP/?p=10013
http://www.consortiumnews.com/2011/010511.html
http://truth-out.org/news/item/18296-the-so-called-strict-constructionist-justices-lessons-from-hoffman-plastics
http://www.opednews.com/articles/Scalia-is-a-Fraud-Undeser-by-Andrew-Schmookler-130312-139.html
Shocking, no?
Rex
(65,616 posts)I mean, when it suits them and their families.
truebluegreen
(9,033 posts)They disgrace the Court as their compatriots disgrace the nation. Worse, they have almost unimaginable power. And lifetime appointments. And the Supremes are not subject to the same code of ethics as other judges.
Fred Sanders
(23,946 posts)WILL lead to anarchy as both Scalia once opined and which logically will follow if all employers invoke it to discriminate on religious grounds all kinds of beliefs against employees, customers, suppliers, etc.
Has it been pointed out that not only Christians would use a lowered or entirely eliminated standard to do so?
That this opens the door to any manner of legalized suppression by any religion or sect?
AND WHO will decide if the belief is truly genuine, that for example, gays being discriminated by employers is AOK because so and so's religion supports it?
I just can not believe 5 American jurists can stretch logic that far.
Fred Sanders
(23,946 posts)free to purchase their own, does that not end the freedom of religion argument?
Iliyah
(25,111 posts)don't want their employees nor anyone else to get any form of "Birth Control". Actually they hate Obamacare period. Chip chip away.
But Justice Kennedy brought forth the issue of abortion claiming that "birth control" is a form of such. I just want to express that I'm so tired of these religious zealots telling me how to manage my own body. This shit is gonna backfire on RWers/GOPers/Libertarians big time.
Gothmog
(152,065 posts)Scalia does not care about the law and rejected a couple of his own opinions in his dissent on the individual mandate for the Affordable Care Act. Scalia has become a nutcase hack who does not care about logic or being consistent with his own prior opinions.
Liberal_in_LA
(44,397 posts)obxhead
(8,434 posts)It's a violation of my religion for any company to pay less than $50 an hour. Any employee that works more than 45 hours per week gets overtime pay even if they are salaried. All employees enjoy 30 days of paid time off to be used however they wish from day one. Health insurance is covered 100% from day one.
My RELIGION demands this!
I'll make up the fictitious being later, right now we're working on our beliefs.
Kurovski
(34,657 posts)pinto
(106,886 posts)Roland99
(53,345 posts)Social Security, Minimum Wage, Discrimination Laws, Compelled Vaccination
"parade of horribles"
Let that sink in for a bit.
That's the mentality we're fighting.
HockeyMom
(14,337 posts)Good Republican.
Kablooie
(18,710 posts)He may have some grudge against the system and wants to bring it down in retribution.
Nanjing to Seoul
(2,088 posts)and by a woman (no sexism intended, remember, this is Scalia we're talking about).
Hekate
(93,593 posts)My dream is he gets two more. Fat Tony, for instance, is overdue for retirement. Or something like that.
blkmusclmachine
(16,149 posts)KansDem
(28,498 posts)...from these Supremes.
1StrongBlackMan
(31,849 posts)throwing a Justice's argument in his face working for intellectually honest Justice's. But scalia has demonstrated time and again, his ideology, not the law or his previous judicial opinions, informs his opinion on cases before him.
Rather than accept his previous opinion, scalia will take it as a intellectual challenge to distinguish his previous argument the previous opinion from the current one ... even if his distinction follows no judicial logic.
Conservatives have no problem with inconsistency or judicial integrity ... so long as it nets them the result they seek.
olegramps
(8,200 posts)I admire the women justices, however, this only reinforces my objection to lifetime appointments. We have five extreme right zealots on the court that will decide the case.
Sheepshank
(12,504 posts)The exact word I used yesterday...maybe frm a slightly different angle, but where rule of law is subject to exemption whims of every single objector, there would be no point to the law in the first place.
http://www.democraticunderground.com/?com=view_post&forum=1002&pid=4725664
hueymahl
(2,626 posts)Brilliant legal argument!!!
BlancheSplanchnik
(20,219 posts)polichick
(37,420 posts)grahamhgreen
(15,741 posts)MADem
(135,425 posts)Prophet 451
(9,796 posts)But teh fact is that Alito, Thomas and Scalia decide their cases purely on the politics. Alito and Thomas then construct a legal figleaf to rationalise it, Scalia doesn't even bother to do that. He doesn't write decisions, he writes rants.
Y'know, from a legal history standpoint, this situation might be unique. I don't know if there's ever been a majority of a Supreme Court who just plain don't give a shit about the law before. Remember what was said about the Bush Whitehouse? That there was no policy apparatus and that things were decided just by reducing everything to black-and-white terms and then steering everything as far right as possible? That's what teh current SCOTUS is doing. They just pick the furthest right option available (or, in the CU case, just plain invent a new one) and then (metaphorically) throw darts at a precedent book until they figure "that'll do".
AngryAmish
(25,704 posts)This is not a 1st Amendment case. It is a statutory interpretation case. HL claims the 1993 Religious freedom act, which says all laws must meet strict scrutiny standard, allows them to avoid buying birth control.
The argument is that the ACA was drafted with knowledge of the 1993 law, did not specifically that corps can't opt out, so under 1993 law allows them to opt out.
What Scale warned about in 1990 has no relive nice since Congress passed the 1993 law.
yurbud
(39,405 posts)are not about principle or ideology: they are about the rich winning at all costs.
DirkGently
(12,151 posts)This is not about religion. It's a Republican scheme to attack the ACA, because Republicans are obsessed with attacking the ACA.
Kagan is right, but she's pointing out the obvious. Religion isn't carte blanche to ignore secular law, because we don't live in a theocracy.
Moreover, we don't recognize damaging and discriminating against people as a "right." That's a perversion of both reason and the meaning of freedom. It's one Rand-style Libertarians don't understand, which is why they don't have an answer for why the Civil Rights Act was a good and necessary thing, but government telling people how to treat other people is always tyranny.
Still, this is a bad, bad Supreme Court. Roberts and Alito think corporations are not only people, but superior people. Scalia is simply malicious.